5.  The applicant is a specialist in lung diseases. She had worked since 1992 in a hospital in Ruda Śląska. On an unspecified later date W.R.K. became chief physician of the ward in which the applicant worked. A serious conflict arose between them, the applicant becoming increasingly critical of various decisions taken by W.R.K. in the diagnosis and treatment of the ward’s patients.
6.  On 16 September 2004 the applicant wrote to Professor J.K. who was at that time a regional consultant for lung diseases. She submitted that W.R.K.’s conduct had demonstrated that she [that is, W.R.K.] lacked appropriate skills to run the ward as her clinical experience and judgment left much to be desired. The applicant referred to the cases of seven patients who had been treated in the ward and indicated shortcomings which she perceived as errors in their diagnosis and treatment. She stated that W.R.K. had often behaved in a manner contrary to professional ethics, by questioning the applicant’s clinical judgment and by denigrating her in the eyes of patients and the ward’s medical staff. She declared that she would not have bothered the professor with this problem if not for the fact that W.R.K. had threatened her with dismissal for refusing to comply with her orders.
7.  On 5 November 2005 the hospital dismissed the applicant on the grounds of a serious failure to comply with her duties within the meaning of Article 52 of the Labour Code.
8.  The applicant filed a compensation claim for unlawful dismissal with the Labour Division of the Ruda Śląska District Court.
9.  During the proceedings the court heard as witnesses W.R.K., E.Ch., who was at that time the director of the hospital, J.W. - the former Head Physician of that hospital, two doctors working in the ward M.M. and Z.L., and H.W., the leader of the trade union branch at the hospital. It also had regard to the applicant’s employment file and to the medical records of various patients treated in the ward.
10.  By a judgment of 22 December 2005 the court allowed the applicant’s claim and awarded her compensation in the amount of 9,413 Polish zlotys (PLN) with statutory interest payable from 6 November 2004.
11.  The court found that the applicant was a very good specialist. It further established that a serious and long-standing conflict had arisen between her and W.R.K. On an unspecified date in 2004 the former chief physician of the hospital, J.W., had decided to intervene in the conflict, but had subsequently given notice on his contract in September of that year and had left before doing so. Dr E.Ch. had taken over his duties. In 2004 she had reviewed the ward patients’ medical records and found no irregularities. On an unspecified date, apparently also in 2004, the applicant had informed the director of her doubts as to the correctness of certain diagnostic and therapeutic decisions made by W.R.K. The applicant had also informed Dr E.Ch. that she had shown certain patients’ records to the regional consultant, asking for his opinion. She had handed over to Dr E.Ch. a copy of her letter to the consultant. Dr E.Ch. had expressed no objections.
12.  The court further found that it had been normal practice in the ward that medical records were kept by the treating doctor. It had not been established, in the light of the evidence before the court, that the applicant had made any irregular changes, amendments to or comments in the records kept by other doctors or had otherwise tampered with their content.
13.  The court noted that the evidence given by W.R.K. concerning the allegations that the applicant had improperly amended the medical records and refused to follow her orders lacked credibility. It was not in dispute between the parties that a serious conflict between the applicant and W.R.K. had made it almost impossible for the ward to function normally. W.R.K., in her capacity as head physician of the ward, had proved unable to take any steps to defuse that conflict. Likewise, the hospital’s medical director, Dr E. Ch., had not taken any reasonable steps to address the situation. The court was of the view that the applicant had been dismissed because the hospital authorities had considered that her dismissal was simply the easiest way of getting rid of the problem.
14.  The court further held that the allegations that the applicant had made errors and about the alleged irregularities in the manner in which she had administered the patients’ medical records had not been confirmed by the evidence. The fact that the applicant, when she had been in doubt as to the correctness of the medical decisions taken in respect of some patients, had shown their records to the regional consultant asking for guidance, did not amount to any irregularity. Indeed, such conduct was expressly recommended by the Law on the Profession of Physicians. The applicant’s conduct also had to be seen in the context of the fact that she could not expect any assistance, clinical or otherwise, from her superior W.R.K.
15.  The court observed that it was the superior’s obligation to organise the work of the ward in such a way as to make full use of the employees’ professional potential and their time. It was unethical on the superior’s part to exacerbate a conflict with a member of staff.
16.  The court referred to the procedure by which the applicant had been dismissed, including the consultation with the local branch of the trade union. It found that the procedure had not complied with the requirements laid down in the Labour Code.
17.  The court concluded that the applicant’s dismissal was unjustified and unlawful as her conduct could not reasonably have been said to amount to a serious breach of her professional obligations and awarded her compensation.
18.  The hospital appealed. By a judgment of 28 June 2006 the Gliwice Regional Court dismissed the appeal.
19.  By a letter of 3 November 2004 the applicant requested the Katowice Regional Medical Chamber to intervene in the conflict between herself and W.R.K. She submitted, inter alia, that the head physician had perceived her as a professional threat. As she could not find genuine reasons to criticise the applicant, she had started to bully her. Ultimately, she had untruthfully complained to the then director of the hospital that the applicant had been refusing to comply with her orders. As a result, the applicant had been dismissed. The applicant requested that a professional supervision commission be set up to examine W.R.K.’s working methods. She attached a list of professional errors which, in the applicant’s view, W.R.K. had committed and which had come to light during her numerous confrontations with W.R.K.
20.  By a decision of 20 January 2005 the Katowice Regional Attorney for Professional Liability (Okręgowy Rzecznik Odpowiedzialności Zawodowej – “the Regional Attorney”) refused to institute an investigation, finding that the applicant had submitted her request against the background of the conflict with her boss.
21.  The applicant appealed. She submitted, inter alia, that she was upset by the arguments advanced by the Regional Attorney that she had no right to criticise the head physician even when the latter was acting to the patients’ detriment.
22.  On 31 May 2006 the Principal Attorney for Professional Liability (Główny Rzecznik Odpowiedzialności Zawodowej) quashed the decision of 20 January 2005 and remitted the case.
23.  On 18 August 2006 the Katowice Regional Attorney refused to institute proceedings following the applicant’s complaint against W.R.K.
24.  On 22 August 2006 he instituted an investigation against the applicant based on suspicion of unethical behaviour towards a colleague and superior. On 13 October 2006 he brought a case against her before the Katowice Regional Medical Court (“the Regional Medical Court”) for offences specified by Articles 52 (1), 52 (2), 52 (3) and 1 (3) of the Code of Medical Ethics inter alia for “openly criticising her superior’s diagnostic and therapeutic decisions, in the presence of other colleagues and members of medical and non‑medical staff”.
25.  The Regional Medical Court subsequently questioned as witnesses W.R.K., E.Ch. and K.K., a director of the hospital.
26.  On an unspecified later date a copy of the judgment of the Labour Court (see paragraphs 8 to 17 above) was included in the case file.
27.  On 14 September 2007 the Regional Medical Court found the applicant guilty of unethical conduct, punishable under Article 52, paragraphs (1), (2) and (3) of the Code of Medical Ethics as amended in 2003 and under Article 1 paragraph (3) of that Code. The conduct was said to consist of: failure to comply with her superior’s orders (paragraph 1); publicly making disparaging statements about her superior to the medical staff of the ward (paragraph 2); informing other doctors about what she perceived to be erroneous decisions on her superior’s part and taking patients’ medical records out of the hospital to show them to the regional consultant (paragraph 3); and inability to work in a medical team (Article 1 paragraph 3 of the Code).
The court imposed a reprimand (nagana) on the applicant.
The court found that the applicant had been in conflict with W.R.K.; that she had openly and persistently expressed negative opinions about W.R.K.’s qualifications in the presence of other doctors and medical staff and even in the presence of patients and their families, which constituted an offence under Article 52 (2) of the Code of Medical Ethics. The applicant was also found guilty of refusing to comply with her superior’s orders and of amending medical records without informing her superior, an offence punishable under Article 52 (1) of that Code. She was further found to be in breach of Article 52 (3) by having informed other doctors of the allegedly erroneous decisions of her superior and by having taken the medical records out of the ward to show them to the regional consultant.
28.  The applicant’s lawyer filed an appeal against the judgment with the Supreme Medical Court (Naczelny Sąd Lekarski). He submitted that the court had failed to respect the provisions of the Code of Criminal Procedure governing the proceedings, by disregarding the applicant’s request for evidence to be admitted from the file of the labour case; disregarding the applicant’s requests that the evidence submitted in her written reply to the charges brought against her be considered and failing to make a formal decision refusing to take this evidence; failing to specify the time and place where the applicant had committed the alleged offences and by putting leading questions to the witnesses.
It was further argued that the first-instance court had entirely failed to take into consideration the findings of fact made by the labour court.
29.  It was further submitted that the applicant should not have been penalised for expressing her views. The court had breached the Code of Medical Ethics, Article 52 (4) of which provided that informing the Medical Chamber of a breach of medical ethics committed by another doctor or about his or her professional incompetence could not be interpreted as a violation of ethical rules. The applicant had informed the Medical Chamber in 2004 about W.R.K.’s conduct which had been, in her view, both unprofessional and unethical. She had also requested the Chamber’s assistance in defusing the professional conflict. However, the Chamber had chosen to penalise her instead.
30.  In addition, the court had erred in law in that it had failed to show that the applicant’s conduct had resulted in W.R.K. losing the confidence of other doctors or patients and their families, this being necessary for the commission of the offence under Article 52 (2).
31.  By a decision of 13 March 2008, served on the applicant’s lawyer on 1 September 2008, the Supreme Medical Court dismissed the appeal. It dismissed the applicant’s argument that the court had disregarded her request for evidence to be taken. The applicant’s dismissal from work had been unlawful, but, in the court’s opinion and contrary to the labour court’s view, it did not mean that it had not been justified.
32.  As to the first‑instance court’s failure to establish the dates of the acts with which the applicant had been charged, the second-instance court established that they had occurred between 1 July 2002 and 5 November 2004.
33.  The court further noted that the first-instance court had been free and independent in its assessment of the evidence gathered in the proceedings.
34.  It further observed that Article 1 (3) of the Code of Medical Ethics provided that any conduct which undermined confidence in the profession was in breach of the profession’s dignity. Hence, it was of no relevance that the applicant had first requested the Medical Chamber to intervene.